united states v. rodriguez-carmona, 1st cir. (1997)

7/26/2019 United States v. Rodriguez-Carmona, 1st Cir. (1997)

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USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-2277

UNITED STATES,

Appellee,

v.

LUIS A. RODRIGUEZ-CARMONA,


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Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge] ___________________

____________________

Before

Selya, Boudin and Lynch,

Circuit Judges. ______________

____________________

Luis A. Rodriguez-Carmona on brief pro se. _________________________

Guillermo Gil, United States Attorney, Warren Vazquez, As _____________ ______________

United States Attorney, and Jose A. Quiles Espinosa, Senior Lit _______________________

Counsel, on brief for appellee.


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____________________

March 26, 1997

____________________

Per Curiam. After a jury trial, appellant Lu ___________


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Rodriguez-Carmona was convicted of aiding and abetting t

importation and possession of heroin with intent

distribute in violation of 21 U.S.C. 841(a), 952, and

U.S.C. 2. He was sentenced to sixty-three mont

imprisonment and five years of supervised releas

Proceeding pro se on appeal, appellant seeks to overturn___ __

conviction due to alleged prosecutorial misconduct a

ineffective assistance of defense counsel. We affirm t

conviction, but we decline to reach appellant's ineffecti

assistance of counsel claims.

I.

Because appellant does not challenge the sufficiency

the evidence, we provide a neutral summary of the evidence

enable us to determine whether the events about whi


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appellant complains on appeal were harmless or prejudicia

See, e.g., United States v. Morla-Trinidad, 100 F.3d 1,

___ ____ _____________ ______________

(1st Cir. 1996); United States v. Hardy, 37 F.3d 753, 7 _____________ _____

(1st Cir. 1994).

Acting in response to an intelligence alert, two U.

Customs inspectors identified appellant and Edward Iba

Cosme (Iba ez), when they arrived at Puerto Rico's Luis Mu

Mar n International Airport on a flight from Caraca

Venezuela. Upon inquiring where he should go to cle

customs, Iba ez was taken for a secondary inspection. Duri

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the course of this inspection a customs inspector performe

pat-down search and identified something concealed

Iba ez's crotch. When instructed to lower his pants, Iba

stated, "me mangaste, you caught me" and revealed a packa

containing 36 pellets of heroin similar to those oft

swallowed by drug smugglers. Iba ez was immediately arrest

and given the Miranda warnings. He told the custo _______


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inspectors that he was travelling alone and that the dru

belonged to him.

After the heroin had been found on Iba ez, a seni

customs inspector took appellant to a secondary inspecti

area for questioning and examination of his luggage. Se

Western Union money transfer receipts bearing appellant's a

Iba ez's names were found in appellant's bag, five of whi

had been signed by Iba ez. Although appellant had initial

stated that he was travelling alone, when questioned furt

he said that Iba ez had given him the receipts. Appella

was also placed under arrest and taken with Iba ez to a loc

hospital for x-rays, which proved negative.1 1

Appellant and Iba ez were both indicted on dr

trafficking charges. Shortly before trial, Iba ez enter


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into a plea agreement. He thereafter became the government

star witness at appellant's trial. After acknowledging t

____________________

1At the hospital, Iba ez encountered a male acquaintan 1

and told him that he had been caught drug trafficking.

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plea agreement, which was admitted into evidence, and t

fact that he could be prosecuted for perjury if he failed

tell the truth, Iba ez testified at some length about

past criminal exploits - without objection from defen

counsel.2

2

Iba ez then described two smuggling ventures that

claimed to have undertaken on appellant's behalf. In t

first such venture, Iba ez and a friend went to Venezuela

procure a heroin sample for appellant. As the return fli

to Puerto Rico was delayed, appellant wired Iba ez money

that he and his friend could fly to Puerto Rico first clas

Iba ez identified one of the Western Union receipts that

been found in appellant's luggage as the receipt for t


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funds that had been used for the return plane tickets on t

occasion. He claimed that he delivered 10 pellets of hero

to appellant as a result of this trip. Iba ez testified t

the heroin that he delivered to appellant was supplied by

____________________

2The prosecutor first elicited Iba ez's criminal recor 2

which included convictions for theft of a toolbox, au

theft, and contempt. In an effort to minimize the risk

impeachment on cross-examination, the prosecutor ne

required Iba ez to describe his criminal activities that

not resulted in convictions. Iba ez then testified that

had transported drugs to Spain via Puerto Rico the precedi

November and that he had participated in an elabora

escapade which included a hold-up of a gas station,

ensuing shoot-out, hit-and-run, carjacking, and automobi

crash, after which Iba ez and his cohorts eluded the poli

by escaping through a waterfall. While the trial judge twi

convened bench conferences to question the relevance of t

testimony, defense counsel raised no objection to it.


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-4-

Colombian, Cesar Augusto Buendia, and that the remaini

Western Union receipts found in appellant's luggage reflect

drug payments that appellant had made to Buendia.3

3

With regard to the second smuggling venture, whi

resulted in the arrests of Iba ez and appellant, Iba

testified that he recruited his cousin Jose Iba ez (Jose)


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assist in carrying the drugs but that Jose did not have

passport. As a result all three men - appellant, Iba ez, a

Jose - travelled to Connecticut to secure passports so t

they could travel to Venezuela and return carrying drugs

Puerto Rico.4 Because Iba ez informed the passport agen

4

that the three were scheduled to travel to Venezuela ve

soon, the agency issued the men passports on the very

that they applied for them. The three then returned

Puerto Rico and left for Venezuela on March 22, 1995.

Iba ez related that after staying in Venezuela brief

the three men travelled to Colombia and checked into a hot

in accordance with the instructions of their supplie

Buendia. Eventually, Buendia caused the heroin to


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delivered to appellant's hotel room, where Iba ez washed t

pellets and divided them into two packages. According

____________________

3Iba ez described how appellant sent him to Western Uni 3

on multiple occasions to wire money to Buendia.

4Iba ez testified that it was necessary to travel4

Connecticut, where Jose had been born, to secure Jose's bir

certificate for his passport application.

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Iba ez, appellant was present when the heroin was deliver

and while he was packaging it. Iba ez testified t

appellant had business at his drug point in Puerto Rico,

he and Iba ez decided to return there with the heroin. Jo

was left behind to return later with two pairs of tenn

shoes that were being loaded with heroin.

Iba ez testified that, initially, Iba ez body-carri

one package with 20 pellets of heroin, while appella

carried a similar package with 16 pellets. Appellant beca

scared after their luggage was searched at the Venezuel

border, so he instructed Iba ez to carry all the hero

thereafter. The two flew to Caracas and from there to Puer


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Rico without incident. Upon arriving in Puerto Ric

appellant instructed Iba ez to go up front to be chec

first. Iba ez testified that although he initially told t

authorities that the drugs were his, in fact they belonged

appellant.

Iba ez's testimony was corroborated by the passpor

and plane tickets of appellant and Iba ez, which we

admitted into evidence, and the testimony of Richa

Herdmann, a senior customs supervisor. Herdmann testifi

that after Iba ez had been found with the heroin, he notic

that the defendants' passports and plane tickets bo


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-6-

sequential numbers interrupted by one digit.5 As Herdma 5

was responsible for determining whether any other perso

were involved in drug trafficking, he made inquiries

determine who had been issued the passport and plane tic

with the intervening numbers. Herdmann testified that the


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items had been issued to Jose, but that he had not boar

the plane in Venezuela.66

Appellant did not testify at his trial. Althou

defense counsel had announced that Jose would be testifyi

in appellant's defense, the record indicates that Jose

arrested at the outset of appellant's trial and charged wi

the same crime as appellant (i.e., aiding and abetting t

importation of heroin), and conspiring to import heroin. Jo

was never called as a witness.7 Defense counsel relied7

excerpts from the testimony of the customs officers a

Iba ez to argue that Iba ez acted alone in the smuggli

endeavor and that appellant was a legitimate business

____________________


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5Iba ez's passport bore the number 140533715 whi 5

appellant's passport bore number 140533717. Both passpor

had been issued in Connecticut on March 3, 1995. Similarl

Iba ez's plane ticket for his return flight to Puerto Ri

bore a number ending in 10, while appellant's plane tic

ended in 12.

6Herdmann also ascertained that Jose's passport had be 6

issued at the same time and place as those of appellant a

Iba ez.

7It is undisputed that Jose was tried after appellant a 7

acquitted on all charges. See United States v. Jose Iba e ___ _____________ _________

Maldonado, #95-CR-195(SEC)._________

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unaware of the drug venture. The jury rejected this defens

Remaining facts will be discussed in the context of t

arguments that appellant raises.

II.

On appeal, appellant asserts that the prosecutor pursu

a "carefully tailored" strategy that was designed

impermissibly bolster the credibility of the government


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chief witness (Iba ez), while simultaneously deprivi

appellant of his own star witness (Jose). Consistent wi

this general theme, appellant contends that his convicti

should be reversed on three grounds. First, appellant argu

that certain remarks that the prosecutor made in his rebutt

argument improperly vouched for the credibility of Iba ez a

expressed the prosecutor's personal opinion about how dr

traffickers work. Second, appellant contends that t

prosecutor violated his Sixth Amendment right to compulso

process by arresting Jose solely to cause him to invoke

privilege against self-incrimination, thereby deprivi

appellant of his testimony. Finally, appellant contends t

he was deprived of the effective assistance of couns

because his trial counsel failed to move to suppress t


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evidence seized by the customs officers and further failed

-8-

protect appellant's right to compulsory process by taki

steps to ameliorate the government's arrest of Jose.

We first examine the prosecutor's conduct, mindful t

because defense counsel did not object to it below, we revi


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only for plain error. See, e.g., United States v. Sulliva ___ ____ ______________ ______

85 F.3d 743, 751 (1st Cir. 1996). This means that we mu

view the prosecutor's conduct in the context of the enti

trial and that we may reverse only if we conclude that, "

miscarriage of justice would otherwise result,'" or that

plain error "'seriously affect[ed] the fairness, integrity

public reputation of judicial proceedings.'" United States_____________

Olano, 507 U.S. 725, 736 (1993)(citations omitted); Unit _____ ___

States v. Josleyn, 99 F.3d 1182, 1197 (1st Cir. 1996 ______ _______

Appellant has failed to meet this "hard-to-satisfy standar

United States v. Taylor, 54 F.3d 967, 977 (1st Cir. 1995). _____________ ______

III.


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The Prosecutor's Rebuttal _________________________

In cross-examining Iba ez, defense counsel emphasiz

the fact that Iba ez had first told the authorities that t

drugs belonged to him alone. Defense counsel's closi

argument implied that Iba ez had changed his story

incriminate appellant only after he executed the government _____

plea agreement.8 Appellant now contends that the prosecut 8

____________________

8Referring to Iba ez, defense counsel argued that, "it8

not until the government made a plea agreement with

[that] he reverted (sic) his testimony."

-9-


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engaged in improper witness-vouching when he attempted

rebut defense counsel's insinuation by referring to the pl

agreement as follows:

.... that piece of evidence ... will

reflect that definitely Mr. Iba ez was

fully debriefed and examined prior to the

signing of the plea agreement. So the ______

government already heard, knew, _________________________________________

investigated, and corroborated the _________________________________________

information given by Iba ez prior to the _________________________________________

signing of the plea agreement and prior ______________________________


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to bringing him here to testify [to] the

facts to you. Simply it did not become a

magic act as presented by defendant in

saying that after the plea agreement was

made then he changed his -- his version.

No.

These things are investigated thoroughly _________________________________________

first before even thinking of signing a _________________________________________

plea agreement, corroborated by the _________________________________________

agency and also investigated. So read _______________________________

the totality of the plea agreement, and

you will see the terms of it. Just don't

take a word of mouth explanation. Just

read the evidence. It's there in

evidence. So you will know how this

takes place, and that will assist you in

reaching the truth in your deliberations.

(emphasis supplied).

"[A] prosecutor may not imply that the government

inculpatory information that is not in evidence." Unit ___


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States v. Manning, 23 F.3d 570, 573 (1st Cir. 1994)(citatio ______ _______

omitted). Comments like, "the government ... investigate

and corroborated the information given by Iba ez" and t

remaining language emphasized above could fairly

understood to imply that the government had an addition

source of information from which it learned Iba ez's sto

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even before he agreed to cooperate. We agree that the

remarks crossed the line into improper vouching, and t

government essentially concedes as much. See United Stat ___ __________

v. Tajjedini, 996 F.2d 1278, 1284 (1st Cir. 1993) (noti _________

that it is improper for a prosecutor to even "seem to rely

matters not in evidence").

Appellant next assails the following portion of t

prosecutor's rebuttal, which was made in response to defen

counsel's suggestion that appellant's apparent involvement

the crime was an accident:

Ladies and gentlemen ... I submit to you

[that there are] too many coincidences

for this to be a mere accident. This is _______


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how drug traffickers work. Some are _____________________________

smarter than others and will tell you,

listen, they almost caught me. You carry

the drugs. Keep -- keep up front. I'm

going to stay in the back ... in case

something happens. That's what happened

here: a very shrewd trafficker,

Rodriguez, putting the other guy up front

so if he gets caught he gets the ...

problem. (emphasis supplied).

Appellant contends that the comment, "[t]his is how dr

traffickers work" was an improper statement of opinion t

was not supported by the evidence.9 We agree that t 9

comment evinces a poor choice of words. While the stateme

may have been construed as a simple rhetorical invitation

____________________

9Appellant argues that whether or not drug traffickers u 9


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"mules" to avoid apprehension in the way the prosecut

claimed that Iba ez was used here was a subject that requir

an expert opinion before the prosecutor could comment on it

-11-

find appellant guilty based on Iba ez's testimony,

arguably implied that appellant was guilty because

alleged conduct, as described by Iba ez, was consistent wi

the prosecutor's experience with other drug trafficker


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Such an implication is, of course, improper. See, e. ___ __

Tajjedini, 996 F.2d at 1284 ("it is ... improper for_________

prosecutor to insert his own credibility or opinions in

argument").

Nevertheless, we do not think that these remar

constitute plain error, for the record suggests that it

highly unlikely that appellant was prejudiced by them. S

Olano, 507 U.S. at 735 (specific showing of prejudice_____

normally required to establish plain error).10 To be sur 10

the government's case hinged upon the credibility of Iba e

and the government could ill afford to vouch improperly f

him. Nevertheless, both of the remarks challenged he

appear to be instances of accidental overkill rather than


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deliberate attempt to mislead the jury. Iba ez's testimo

____________________

10The "plain error" test requires that we consider t 10

prosecutor's remarks in light of all the "attenda

circumstances," including "(1) the extent to which t

prosecutor's conduct is recurrent and/or deliberate, (2) t

extent to which the trial judge's instructions insulated t

jury against, or palliated, the possibility of unfa

prejudice, and (3) the overall strength of the prosecution

case, with particular regard to the likelihood that a

prejudice might have affected the jury's judgment." Taylo ____

54 F.3d at 977 (citation omitted). The weight of t

evidence of guilt or innocence is the most important fact

in this analysis. See Arrieta-Agressot v. United States,___ ________________ ______________

F.3d 525, 528 (1st Cir. 1993).

-12-


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was, in fact, corroborated by the plane tickets, t

passports, and the Western Union receipts that had been fou

in appellant's luggage. We think it likely that t

evidence was the outside corroboration to which t

prosecutor referred in his remarks concerning the pl

agreement and that the jury understood as much. Finally,

note that the trial judge repeatedly instructed the jury t

the arguments of counsel do not constitute evidence and t

its decision was to be based on the evidence alone. T


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record indicates that the jury returned three questio

before reaching its verdict, thus indicating that

carefully deliberated over the elements of the offenses a

did not simply accept the prosecutor's arguments at fa

value.11 We think this sound evidence that the jury obey

11

the court's instructions to resolve the case on the eviden

and was not seduced to convict on speculation prompted by t

prosecutor's rebuttal. Accordingly, we are confident t

the prosecutor's improper remarks did not so poison the tri

as to require reversal for plain error.12

12

____________________

11The jury requested a copy of the court's instructio

11

and the relevant statutes. It also requested that the cou

clearly define the term "possession" and a copy of t


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portion of Iba ez's testimony wherein he alleged t

appellant had instructed him to carry all of the heroin.

12Appellant also contends that the prosecutor improper

12

elicited evidence of Iba ez's prior bad acts under the gui

of fulfilling the plea agreement's requirement that

testify truthfully and that the trial judge should not ha

admitted this testimony. See note 2, supra. We agree t ___ _____

-13-

The Arrest of Jose__________________


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Appellant next contends that the prosecutor violated

Sixth Amendment right to compulsory process by arresting

star witness, Jose Iba ez, solely as a ploy to prevent

from testifying for the defense. In a related vei

appellant contends that defense counsel rendered ineffecti

assistance because he failed to object to Jose's arrest a

failed to seek a court order that granted Jose immunity

required that the government do so. Both claims rely on t

following additional facts, some of which are beyond t

scope of the record but are conceded as true by t

government.1313

It appears that Jose arrived in Puerto Rico three da

after appellant and Iba ez were arrested and that he


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immediately questioned and released by the custo

authorities, who found no drugs. A few months later, a

approximately eleven days before appellant's trial bega

Iba ez agreed to plead guilty and testify for the governmen

Shortly thereafter, defense counsel announced that Jose wou

____________________

much of this evidence might have been excluded. But defen

counsel raised no objection to its admission. Instead,

relied on it as grounds for attacking Iba ez's credibilit

As Iba ez's criminal exploits were just as likely to make t

jury disbelieve him as otherwise, we cannot say admission

this evidence was plain error.

13These facts pertain to appellant's compulsory proce 13

claim and one of his ineffective assistance of couns

claims. The latter is discussed in part IV, infra. _____

-14-


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be called as a witness for the defense.14 As noted abo 14

Jose was arrested on the first day of appellant's trial, w

he arrived at the courthouse to testify for appellant.

The record discloses that after announcing that Jose

been arrested, the Assistant United States Attorney (AUS

immediately agreed to make Jose available to defense couns

to interview and call as a witness. He also observed t


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Jose would probably reevaluate with his own counsel whet

he wished to testify. (Tr. 9-11). Defense counsel ne

objected to Jose's arrest. Instead, he proceeded with t

trial and made no complaints about a violation of appellant

right to compulsory process. Appellant alleges that "t

scuffle created by" Jose's arrest prevented defense couns

from calling him as a witness. He has submitted an affida

from his trial counsel to support this assertion.15 15

____________________

14This is apparent from defense counsel's motion14

continue the trial (original paper #28). That moti

indicates that defense counsel first interviewed a witne

who could provide exculpatory testimony on June 7, 199

i.e., five days after Iba ez executed his plea agreement

June 2, 1995. We presume that the witness identified in t


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motion is Jose.

15Defense counsel averred that Jose could have provi 15

material, exculpatory testimony to the effect that he did n

observe any drug-related activities by appellant during t

time that they spent together in Venezuela. Once Jose

arrested, counsel believed that his ethical obligatio

prohibited him from contacting Jose until after he

properly represented by counsel. Counsel swore that due

the fact that he was "heavily engaged" in appellant's defen

during the course of the two-day trial, it was impossible f

him to ascertain the status of Jose's case or to coordina

with Jose's counsel to address Jose's Fifth Amendme

-15-


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Appellant now complains that the only explanation f

the timing of the arrest is that it was designed to comp

Jose to invoke his privilege against self-incrimination a

thereby deprive appellant of his testimony.16 At the outs

16

we are compelled to observe that this claim was not rais

below. A strong argument can be made that it has be

waived. Cf. United States v. Theresius Filippi, 918 F. __ ______________ _________________

244, 246 (1st Cir. 1990)(holding defendant waived right

compulsory process when defense counsel decided to proce

with trial without material witness). But as the governme

does not make this argument, we will give appellant t

benefit of the doubt and assume the claim was forfeited, n


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waived. See Olano, 507 U.S. at 733-34 (discussing distincti ___ _____

between "waiver" and "forfeiture"). This benefit is

little moment, for the record, even as supplemented, does n

establish that the arrest of Jose was a plain error t

violated appellant's right to compulsory process.

In order to make out a violation of the right

compulsory process, the appellant must show that "so

contested act or omission (1) can be attributed to t

sovereign and (2) causes the loss or erosion of testimo

____________________

concerns. Counsel's affidavit concludes with the asserti

that "these circumstances prevented me from calling ... Jo

... as a witness despite the fact that his testimony cou

ha[ve] changed the outcome of the trial."

16Appellant says that this conclusion is bolstered by t


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16

fact that Jose was ultimately acquitted on all charges.

-16-

which is both (3) material to the case and (4) favorable

the accused." United States v. Hoffman, 832 F.2d 1299, 13 ______________ _______

(1st Cir. 1987). "[C]ausation is an essential building blo

in ...[this] edifice," id. It is on this block t ___


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appellant's claim stumbles. For while it is clear that t

government is responsible for Jose's arrest, and we wi

assume, for the sake of argument only, that his testimo

would have been material and exculpatory, the record simp

does not show that the arrest caused the loss of Jose

testimony. Defense counsel never subpoenaed Jose. He

not even ascertain that, if subpoenaed, Jose would inde

invoke the Fifth Amendment and decline to testif

Consequently, it is not at all clear that Jose's arre

actually rendered his testimony unavailable. Accordingly,

cannot say that this arrest was a "plain error" that violat

appellant's right to compulsory process. Cf. United Stat ___ __________

v. Arboleda, 929 F.2d 858, 868 (1st Cir. 1991)(holdi ________


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appellant failed to establish government violated his ri

of access to a witness where defense counsel never formal

attempted to meet with witness).

IV.

Ineffective Assistance of Counsel Claims ________________________________________

Appellant argues that defense counsel was ineffecti

because he failed to object to the arrest of Jose and fail

to seek a court order that either granted Jose use immuni

-17-


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or required that the government do so. Appellant al

maintains that defense counsel erred by failing to file

motion to suppress the evidence seized by the custo

inspectors.

As a general rule, this court does not consi

ineffective assistance of counsel claims on direct appe

unless the critical facts are not in dispute and the reco

is sufficiently developed to permit reasoned consideration

the claim. See, e.g., United States v. Collins, 60 F.3d___ ____ _____________ _______

7 n. 1 (1st Cir. 1995); United States v. Natanel, 938 F. _____________ _______


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302, 309 (1st Cir. 1991), cert. denied, 502 U.S. 1079 (1992 _____ ______

We do not think that the present record is sufficient

developed to allow us to dispose of the foregoing issue

Accordingly, we decline to reach appellant's ineffecti

assistance of counsel claims in the context of this appea

Appellant remains free to raise these issues in a motion f

post-conviction relief under 28 U.S.C. 2255. See, e. ___ __

United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993 _____________ ____

cert. denied, 511 U.S. 1086 (1994). The judgment_____ ______

conviction is otherwise affirmed. ________


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united states v. rodriguez-carmona, 1st cir. (1997)

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